Cases and Materials on the Law of Torts

Harry Shulman

Fleming James Jr.

Oscar S. Gray, University of Maryland School of Law

Donald G. Gifford, University of Maryland School of Law

CasebookPlus™

This title is available in our CasebookPlus format. CasebookPlus provides support beyond your classroom lectures and materials by offering additional digital resources to you and your students. Anchored by faculty-authored formative self-assessments keyed to our most popular casebooks, CasebookPlus allows students to test their understanding of core concepts as they are learning them in class – on their own, outside of the classroom, with no extra work on your part. CasebookPlus combines three important elements:

• A new print or digital casebook
• Access to a downloadable eBook with the ability to highlight and add notes
• 12-month access to a digital Learning Library complete with:

Multiple-choice self-assessment questions, including:

• Chapter questions keyed to the casebook
• Black Letter Law questions (available in select subjects)
• Subject area review questions for end of semester use

Essay and short answer questions with sample answers and expert commentary, in 1L and select upper-level subjects

Leading digital study aids, an outline starter, and audio lectures in select subjects

Students can still utilize CasebookPlus digital resources if they’ve purchased a used book or are renting their text by purchasing the Learning Library at westacademic.com.

With CasebookPlus, you can customize your students’ learning experience and monitor their performance. The quiz editor allows you to create your own custom quiz set, suppress specific quiz questions or quiz sets, and time-release quiz questions. Additionally, the flexible, customized reporting capability helps you evaluate your students’ understanding of the material and can also help your school demonstrate compliance with the new ABA Assessment and Learning Outcomes standards.

Table of Contents

Teacher's Manual

Chapter 1. Bases of Liability for Accidental Harm.

The chapter includes a variety of new textual notes, including the following:

1. Note 4 following Ives invites students to consider sources of compensation for accidental injury other than the torts system.
2. Note 5 following Ives contrasts instrumental approaches to tort law (including law and economics) with the corrective justice/civil recourse perspective.
3. Note 3 following Brown v. Kendall discusses classical liberal thought as a possible explanation for the emergence of negligence law in the nineteenth century as an alternative to economic explanations.

Chapter 2. Traditional Forms of Liability Without Fault.

1. A substantial new note on displacement, featuring discussion of the Supreme Court’s opinion in American Electric Power Co. v. Connecticut, has been added to the materials on nuisance.
2. Several newly added notes greatly expand coverage of the liability of the possessors of animals.
3. Several excerpts from early twentieth century secondary materials on vicarious liability that appeared in earlier editions of the casebook have been briefly summarized.
4. Newly added notes address the topics of non-delegable duties and the family purpose doctrine.

Chapter 3. The Anatomy of Fault.

1. Newly revised Section C, “The Respective Roles of Judge and Jury,” adds consideration of how courts often mistakenly categorize judicial determinations of no liability as instances in which “no duty” is owed to the plaintiff. Included in this section is Broussard v. State, which explicitly focuses on this issue, as well as Restatement (Third) of Torts: Liability for Physical and Emotional Harm §7 cmt. i. Also included is a new note on “Open and Obvious Dangers.”
2. Section F, “The Role of Statutes,” now includes not only consideration of negligence per se, but also explicit discussion of the use of statutes by defendants, including displacement and preemption, and cross-references to cases discussing these issues.

Chapter 4. Causation and its Cousins.

1. The materials on cause in fact are restructured. The section now includes five subsections: (1) The Basic Concept of “But/For” Causation, (2) Cause in Fact in Toxic Torts, including newly added excerpts from the Restatement (Third) comment addressing general and specific causation, (3) Multiple or Indeterminate Tortfeasors, (4) Recovery for Loss of Chance, and (5) Causal Linkage. Also included in this section is a new note on “ ‘Third-Generation’ DES Cases.”
2. New notes follow that iconic Palsgraf decision, making explicit reference to how the issues explored in the case are addressed by the Restatement (Third) of Torts.

Chapter 5. The Effect of Plaintiff’s Conduct and Related Issues.

1. The materials addressing the historical development of contributory negligence and its traditional role as a total bar to recovery have been substantially shortened.
2. A new note focuses on whether it was proper for courts to judicially adopt comparative fault.
3. A revised and expanded note presents a comprehensive explanation of alternatives to joint and several liability, including proportionate liability and various legislative alternatives.

Chapter 6. Damages

As previously noted, portions of the “old” Chapter 6 on Damages now appear in a separate chapter, Chapter 8: “Other Limitations on Liability Based on Type of Harm,” which will be described below.

Chapter 7. Protection of Others.

1. The traditional chestnut, Yania v. Bigan, is replaced with Judge Posner’s well analyzed opinion in Stockberger v. U.S., considering the duty to rescue issue.
2. A new note, Note 2 following Harper v. Herman, contrasts two recent decisions regarding liability for failure to protect a minor from sexual exploitation.

Chapter 8. Other Limitations on Liability Based on Type of Harm.

This new chapter incorporates material formerly in Chapter 6, Damages, as well as additional material. As the introduction to the chapter explains, “This chapter considers those instances in which the type of damages sought by the plaintiff brings with it more restrictive rules governing liability.” Part A considers rules and policies governing recovery for psychic harm alone. Part B covers whether there should be recovery for loss of companionship as a result of a non-fatal injury to a family member. In Part C, we turn to another type of harm often handled under the rubric of “no duty”—recovery for a child’s “wrongful life” or a parent’s “wrongful birth” resulting from medical negligence. Finally, Part D covers the law governing whether there can be recovery for purely economic or commercial loss in the absence of personal injury or property damage.

1. Included in Part A are new notes covering emotional distress resulting from fear of contracting latent disease and medical monitoring expenses.
2. Recovery for loss arising from injury to family members is now covered in Ueland v. Pengo Hydra-Pull Corp., which replaces Ferriter v. Daniel O’ Connell’s Sons, Inc.
3. Wiltz v. Bayer Cropscience, Ltd. P’ship has been added as a principal case to explain the majority rule that economic losses are not recoverable in the absence of personal injury or property damage. A shortened version of People Express Airlines, Inc. v. Consolidated Rail Corp. is retained to explain the contrary, minority opinion. A new note explains exception to the majority rule.

Chapter 10 (formerly Chapter 9). Liability of Possessors of Land.

1. The chapter begins with an extensive introduction describing the two alternative approaches to the handling of liability of landowners, the traditional “trichotomy” approach and the modern “one size fits all” reasonable approach.
2. The relevant Restatement (Third) provisions adopted in 2012 appear throughout the chapter.
3. The liability owed to trespassers is now considered in the principal case of Cain v. Johnson, which replaces Osterman v. Peters.

Chapter 11 (formerly Chapter 10). Liability of Suppliers of Products.

1. On the topic of product misuse, Ellsworth v. Sherne Lingerie, Inc. replaces Ford Motor Co. v. Matthews. Ellsworth is more contemporary, clearly reasoned, and teachable.
2. Daly v. General Motors Corp. replaces West v. Caterpillar Tractor Co. as the principal case on the impact of contributory negligence in products liability cases. The handling of the issue in Daly reflects the contemporary trend.
3. The U.S. Supreme Court’s recent preemption decision in Mutual Pharmaceutical Co. v. Bartlett replaces its earlier decision in Wyeth v. Levine. Bartlett appears to more accurately reflect the direction the Court is heading on preemption. In addition, Justice Alito’s opinion for the majority echoes Judge Posner’s focus on loss minimization while Justice Sotomayor’s dissenting opinion reflects a more Calabresian appreciation of both the loss minimization and the loss distribution functions of tort law. Substantial excerpts from Wyeth are retained in the notes.

Chapter 13 (formerly Chapter 12). Alternative Compensation Systems and Their Coordination with the Tort System.

Chapter 13 has been substantially restructured since the last edition, and significant new material is substituted for older material that has been deleted or shortened.

1. Part B now includes various excerpts that describe the structure and operation of three different no-fault compensations systems: workers’ compensation, the National Vaccine Injury Compensation Plan, and automobile no fault. In doing so, it discusses the goals and objectives of no-fault compensation systems and compares and contrasts different systems.
2. Part C addresses the boundary issues that determine whether a claimant must recover under the no fault system or instead can recover under the common law of torts. For each of the no-fault systems previously mentioned, the casebook either includes a case considering the issue—the Blankenship case analyzing boundary issues in workers’ compensation and the Licari case addressing the analogous issues in automobile no fault—or a new textual description of how the Supreme Court addressed the boundary issue in the vaccine compensation system in Bruesewitz v. Wyth LLC.
3. Part D, Evaluating Automobile No-Fault, is new and includes a substantial new excerpt from a recent RAND Corporation study showing that automobile no-fault insurance has not lowered claims costs.
4. Part E explores the expansion of no-fault systems into other areas, including the September 11 Victim Compensation Fund and, new to this edition, the BP Gulf Coast Claims Facility.

Chapter 14 (formerly Chapter 13). Assault, Battery, and Certain Other Intentional Torts.

1. Several new provisions of the Restatement (Third) of Torts: Intentional Torts to Persons (Discussion Draft, April 4, 2014) and comments to these provisions are considered, including ones focusing on the issue of “single intent v. double intent” and “apprehension without fear.”
2. The new edition includes Snyder v. Phelps, the Supreme Court opinion holding that the First Amendment prevents those protesting at the funeral of a member of the military from being held liable for intentional infliction of emotional distress.
3. Also included for the first time is the Court’s opinion in Kiobel v. Royal Dutch Petroleum Co., holding that the Alien Torts Statute does not confer jurisdiction over extraterritorial conduct.
4. A new note following the malicious prosecution cases covers Spoliation of Evidence.

Chapter 15 (formerly Chapter 14). Misrepresentation.

1. The new edition includes a new note on Liability for Misrepresentation of Opinion (following Cabot v. Christie) that includes discussion of the relevant proposed provision of Restatement (Third) of Torts: Liability for Economic Harm (Tentative Draft No. 2, 2014).
2. Another new note addresses whether one party’s superior knowledge creates an obligation to disclose information with another party (following Laidlaw v. Organ and quoting the Tentative Draft of the Restatement (Third)).
3. Other new notes (1) describe how a fiduciary or confidential relationship creates a duty to disclose and (2) the possible application of comparative fault to intentional misrepresentation actions.

Chapter 16 (formerly Chapter 15). Business Torts.

A new case, Tata Consultancy Services v. Systems Int’l, Inc., explores some of the major issues in the law of interference with contract. It replaces Kenty v. Transamerica Premium Ins. Co. Tata arises in a familiar context for business torts—the defendant’s luring away of valued employees of a competitor.

Chapter 18 (formerly Chapter 17). Invasion of Privacy.

A newly added opinion, Comedy III Productions, Inc. v. Gary Saderup, Inc., explores the boundaries of the “transformative” test for determining when the First Amendment protects an artist’s reproduction of an earlier work.

Learn more about this series.